ORDER
AND NOW, it is hereby ordered that the Decision and Order of the Hearing
Officer are reversed. The District’s 2004-2005 IEP is inappropriate. Parents are entitled
to tuition reimbursement for the Student’s 2004-2005 school year placement at the APS.

All findings and conclusions of the Hearing Officer not inconsistent herewith are hereby

approved and adopted. All exceptions not mentioned or addressed herein are hereby
dismissed.
In accordance with 22 PA Code § 14.162(0), this Order may be appealed to the

Commonwealth Court of Pennsylvania or the appropriate federal district court.

Constance Fox Lyttle, Ph.D., JD
for the Appeals Review Panel

Mailed: September 10, 2005

14


Exceptions must also fail as they too would have us overturn
credibility based determinations in the absence of a finding of record
support for doing so. See Carlisle Area School District v. Scott P.
62 F.2d 520 (3rd Cir. 1995)." (Emphasis by underline added.)

The point here, of course, is not whether the modifiers used by the Hearing Officer in
RS. are present here, which they clearly are not. Rather, it is that every Hearing Officer
is empowered to make determinations, among other things as to evidentiary weight and

credibility, and the record need not be devoid of contrary evidence. Thus, the import of

testimonial extrinsic evidence compels a contrary conclusion and/or, obviously, there is
an error of law. Measured against this standard, the Hearing Officer’s decision in the

present case must be reversed.

The District’s IEP is Inappropriate

IDEA requires that all eligible students receive a free appropriate public education
(FAPE). The Supreme Court established the FAPE mandate to require “education
specially designed to meet the unique needs of the handicapped child, supported by such
services as are necessary to permit the child to benefit from the instruction.” Bd. of

Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley 458 U.S. 176, 188-89, 102 S. Ct.

3034 (1984). FAPE is delivered via an IEP which must be responsive to the needs
identified in the ER. A reevaluation is conducted every three years to determine if
conditions have changed, not to reestablish eligibility. See 34 CFR §§ 300.532-536. The
IEP team, utilizing the ER and IEP, determine the appropriate placement. IDEA requires
placement in the least restrictive environment (LRE), that is, in a regular public school

class, unless certain criteria are met. See 34 CFR §§ 300.550-554.


(b) Transition services for students with disabilities may be special
education, if provided as specially designed instruction, or related
services, if required to assist a student with a disability to benefit
from special education.” 34 CFR § 300.29.

As for the process of transition planning, the regulations further provide that:

Not surprisingly, since transition planning’s advent, numerous jurisdictions have
administratively and judicially addressed transition plan appropriateness under these
regulations. A nationwide mandate, to some degree axiomatic in light of this regulatory
framework, has evolved from these cases. It requires a transition plan to meet state and
federal criteria, identify all needs in a thorough transition evaluation, reflect the
evaluation, and address all potential needs. Absent these elements, the plan is deemed
inappropriate. See “IDEA, the Courts and the Law of Transition”, McAfee and
Greenwalt, 20017; Novato Unified SD, 22 IDELR 1056 (SEA CA 1995), which

invalidated checklist transition plans, and based on nonspecific goals and objectives,

“(1) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), and updated
annually, a statement of the transition service needs of the student
under the applicable components of the student's IEP that focuses on
the student's courses of study (such as participation in advanced-
placement courses or a vocational education program); and _

(2)For each student beginning at age 16 (or younger, if determined
appropriate by the IEP team), a statement of needed transition
services for the student, including, if appropriate, a statement of the
interagency responsibilities or any needed linkages.” 34 CFR §
300.347(b).

awarded compensatory education.

? Where otherwise specifically relied upon in this Decision, this article is appropriately referenced.
However, it was also relied upon as a general tool to develop the overall analysis in this Decision.

10


That Court then added definition to the principle by stating:

As this case comes to us, two issues are settled: 1) the school
district's proposed IEP was inappropriate under IDEA, and 2)
although Trident did not meet the § 1401(a)(18) requirements, it
provided an education otherwise proper under IDEA. This case
presents the narrow question whether Shannon's parents are barred
from reimbursement because the private school in which Shannon
enrolled did not meet the § 1401(a)(18) definition of a ‘free
appropriate public education.' We hold that they are not, because
§ 1401(a)(18)'s requirements cannot be read as applying to parental
placements.

Section 1401(a)(18)(A) requires that the education be ‘provided at
public expense, under public supervision and direction.' Similarly,
§ 1401(a)(18)(D) requires schools to provide an IEP, which must
be designated by 'a representative of the local educational agency,'
20 U.S.C. § 1401(a)(20) (1988 ed., Supp. IV), and must be
‘establish[ed],' and ‘revise[d]' by the agency, § 1414(a)(5). These
requirements do not make sense in the context of a parental
placement. ... in such cases, where the private placement has
necessarily been made over the school district's objection, the
private school education will not be under 'public supervision and
direction.’ ... Moreover, IDEA was intended to ensure that children
with disabilities receive an education that is both appropriate and
free. Burlington, supra, at 373. To read the provisions of
§1401(a)(18) to bar reimbursement in the circumstances of this
case would defeat this statutory purpose.

Nor do we believe that reimbursement is necessarily barred by a
private school's failure to meet state education standards. Trident's
deficiencies, according to the school district, were that it employed
at least two faculty members who were not state-certified and that
it did not develop IEPS. ... Indeed, the school district's emphasis on
state standards is somewhat ironic. As the Court of Appeals noted,
‘it hardly seems consistent with the Act's goals to forbid parents
from educating their child at a school that provides an appropriate
education simply because that school lacks the stamp of approval
of the same public school system that failed to meet the child's
needs in the first place.’ 950 F.2d. at 164. Accordingly, we
disagree with the Second Circuit's theory that ‘a parent may not
obtain reimbursement for a unilateral placement if that placement
was in a school that was not on [the State's] approved list of private
schools.’ Tucker, 873 F.2d, at 568 (internal quotation marks
omitted). Parents’ failure to select a program known to be approved



If FAPE is denied through district actions, tuition reimbursement is an appropriate
remedy. Our early consideration of tuition reimbursement began with In_Re_the

Educational Assignment of Timothy K., Special Education Opinion #554, where we held:

This panel is in agreement with the critical point of the school
district's argument. In fact, that position coincides with the legal
principle that the right to reimbursement exists only where the
proposed TEP would not have provided an appropriate program,
and the parents continued with the prescribed procedures for
challenging that IEP. _ See generally Knight v. District_ of
Columbia, 877 F.2d 1025 (D.C.Cir. 1989); Murphy _v,
Commonwealth of Pennsylvania, Department_of Education, 504
A.2d 382 (1986); Linkous v. Davis, 633 F.Supp. 1109 (W.D.Va.
1986)...

In School Committee of the Town of Burlington, Mass. v. Dept. of

Education of Mass., the Supreme Court held that parents may
obtain reimbursement of private school tuition when a district
offers their child an inappropriate educational placement and the
parents unilaterally place the child in private school during the
pendency of review proceedings. 471 U.S. 359,373-4 (1985).
This is not a case where a district failed to inform the parents of
their procedural rights. See Hall by Hall v. Vance City Board of
Ed., 774 F.2d 629,633-4, n.4 (4th Cir. 1985).

Florence County School District Four v. Carter, 114 S.Ct. 361 (1993), confirmed this,

with the United States Supreme Court holding that:

In School Comm. of Burlington v. Department of Ed. of Mass., 471
U.S. 359, 369 (1985), we held that IDEA's grant of equitable
authority empowers a court to order school authorities to reimburse
parents for their expenditures on private special education for a
child if the court ultimately determines that such placement, rather
than a proposed IEP, is proper under the Act... In cases where
cooperation fails, however, ‘parents who disagree with the
proposed IEP are faced with a choice: go along with the IEP to the
detriment of their child if it turns out to be inappropriate or pay for
what they consider to be the appropriate placement.’ Id, at 370.
For parents willing and able to make the latter choice, ‘it would be
an empty victory to have a court tell them several years later that
they were right but that these expenditures could not in a proper
case be reimbursed by the school officials.’ Ibid.


appropriate program, including all the required elements’, by his or her district. In order
to be deemed appropriate, the program must be delivered in a regular public school
classroom, unless certain criteria are met; and when offered, be "reasonably calculated"
to confer "educational benefit", or "meaningful educational benefit", that is, not trivial

nor de minimis. See Board of Education v. Rowley, 458 U.S. 176 (1982); Polk v. Central

Susquehanna Intermediate Unit 16, 853 F.2d 171 (3" Cir. 1988); Fuhrmann_v. East

Hanover Board of Education, 993 F.2d 1031 (3 Cir. 1993); Susan N. v. Wilson School

District, 70 F.3d 751 a" Cir. 1995); Neshaminy School District v, Karla B., 25 IDELR

725 (E.D. PA, 1997); Oberti v. Board of Education of the Borough of Clementon, 995

F.2d 1204 (3 Cir. 1993); 20 USC § 1412(a)(5); 34 CFR § 300.550.

The controlling regulatory provision defining transition services, which is a
culmination of previous similar requirements imposed by regulation at the time the
District offered this IEP, states:

“(a) As used in this part, transition services means a coordinated set
of activities for a student with a disability that —

(1) Is designed within an outcome-oriented process, that
promotes movement from school to post-school
activities, including postsecondary education, vocational
training, integrated employment (including supported
employment), continuing and adult education, adult
services, independent living, or community
participation;

(2) Is based on the individual student’s needs, taking into
account the student’s preferences and interests; and

(3) — Includes —

@ Instruction;

(ii) Related services;

(iii) Community experiences;

(iv) The development of employment and other
post-school adult living objectives; and

(v) If appropriate, acquisition of daily living

skills and functional vocational evaluation.

"In the present case, the inappropriate Transition Plan is just such an “element”.


SPECIAL EDUCATION DUE PROCESS APPEALS PANEL REVIEW
COMMONWEALTH OF PENNSYLVANIA.

IN RE THE EDUCATIONAL ASSIGNMENT : SPECIAL EDUCATION

OF E.C., A STUDENT IN THE : OPINION NO. 1641
PHILADELPHIA CITY SCHOOL DISTRICT

BEFORE APPEALS PANEL OFFICERS HEETER, LYTTLE AND MCAFEE
OPINION BY LYTTLE, APPELLATE OFFICER

ee ___ BACKGROUND

Student is a seventeen year old resident of the District, who is eligible for special
education and related services as a child who has mild mental retardation and attention
deficit disorder pursuant to the Individuals with Disabilities Education Act (IDEA) and
Chapter 14. FF1. On June 17, 2003, prior to convening a scheduled due process hearing,
the District and legally represented Parents entered into a Settlement Agreement which
provided, inter alia, first, that the District would reimburse the Parents for tuition and
required fees of Student’s Approved Private School (APS) placement for the 2002-2003
school year. See SD3; FF2-4, 9. Second, the Agreement provided that the District would
pay for Student’s tuition and fees for placement at the same APS for the following school
year (2003-2004). FF4; SD3. Third, the Agreement provided that “pendency after May
15", 2004 [sic] will be a school district IEP offered on or before that date. If the school
district fails to offer an IEP on or before that date, pendency would be tuition and
reasonable fees at (the APS) thereafter.” FF3-12, 14; NT35-36, 42; SD3.

Student attended the APS for the 2002-2003 and 2003-2004 school years, and the

District paid the tuition and related costs retrospectively and prospectively as per the

Agreement. FF14. In addition, on April 21, 2004, the District’s psychologist initiated


educational benefit, will be achieved before graduation, and permitted a compensatory
education plan thereafter.
Community based instruction has also proven contentious. [Illustrious of the

results is Appleton Area School District, 27 IDELR 682 (SEA WI 1998), where a 19-

yeat-old with cerebral palsy and mental retardation had earned enough credits to, and did

participate in, graduation, only to be denied a diploma by the IEP team. That team then

developed a plan for high school based classes in daily living, keyboarding, and survival

skills with some community based instruction. Parents agreed with the delayed
graduation, but opposed the specifics of the plan and requested that all instruction occur
in the community. Parents prevailed as the student was found unable to generalize from
the classroom to the community, creating a need for “real world” instruction to derive
meaningful benefit.

In the present case, the District’s transition plan is obviously not “a coordinated
set of activities for a student with a disability” that is “designed within an outcome-
oriented process” taking “into account the student’s preferences and interests”. See e.g.,
P2. While the IEP “suggests” Parent and Student initiated and directed experiences, there
is no evidence that the District provides Student with any transition services whatsoever.
See id. @ 4,5,9; see also, SD4-6. Neither are any of the suggested activities coordinated
towards a clear and specific set of goals or outcomes. Id. Moreover, the Student’s
preferences, interests, and current employment are ignored in future goals, measurable
objectives, and school-supported programming; this alone rendering the transition plan
highly questionable, if not inappropriate. Id. Mere “directives” or “suggestions” by the

District of what the Parents and Student should or might do to ready the Student for post-

12


Since 1990, courts have repeatedly addressed appropriateness of transition plans.
Germane to this matter, they have found that without an ultimate placement objective, a
school district could not establish coordinated activities directed towards desired
outcomes. Where that was the case, no transition plan existed and a new IEP was
required. See McAfee and Greenwalt, supra; Appendix “A” of authorities supporting this

decision; Urban v Jefferson County, 21 IDELR 985 (Dist. CO 1994), aff'd 24 IDELR

465 (10th Cir. 1996).

In Mason City School District, 21 IDELR 248 (SEA IA 1994), an administrative
proceeding found transition services for a student with severe disabilities were not
initiated until two years before scheduled graduation. Further, the eventual plan was
ruled overturned as it lacked specific delineation of school and vocational rehabilitation
agency obligations, and did not reflect consideration of all required IDEA areas.
Concluding, it was ruled that transition services must be planned and initiated in
sufficient time to have the desired impact.

Requirements for planning and initiating transition services were also at issue in

Lancaster Independent School District, 29 IDELR 281 (SEA TX 1998), where post

graduation remedies were ordered. An administrative challenge to adequacy and service
commencement, the transition plan was found inappropriate in not considering an
independent educational evaluation. Despite career information and supplementary
services, it did not supply specially designed instruction and related services which, given
the student’s disabilities, would have been of assistance in obtaining educational benefit.
Likewise, in Puffer v. Raynolds, 19 IDELR 408 (SEA MI 1992), the court required the

transition plan to specify how progress towards the projected outcomes, that is,

11


by the State in favor of an unapproved option is not itself a bar to
reimbursement. (Emphasis added).

In sum, if a district proffers an inappropriate IEP, parents continue to pursue due
process rights under IDEA, and the student's private placement is deemed "proper" under
the Act; parents are permitted to seek and receive tuition reimbursement. See id.

Florence obviously established that "proper" means something short of technical

adherence to every aspect of IDEA. Indeed, lack of a formal IEP requirement and
continued references by the Court to "appropriate", indicates that unilateral parental
placements calculated at their inception to afford the opportunity for "meaningful
educational progress" would pass muster when not otherwise in strict conformity to

IDEA. See Rowley, supra, Susan N., supra, and Fuhrmann v. East Hanover Board of

Education, 993 F.2d 1031 (3d Cir. 1993). Retention of the FAPE standard in the 1997
Amendments to IDEA preserves this reasoning, while requiring ten days written notice to
a district before placing a child privately. (20 USC § 1412(a)(10)(c)).

In the present case, the Hearing Officer conducted a fair and impartial hearing,
and filed a comprehensive, well written Decision, as far as it went. However, we find
that the Hearing Officer erred in applying the law regarding the transition plan element of
this Student’s 2004-2005 IEP. Consequently, the Hearing Officer’s finding that the
District met its burden of proof that its 2004-2005 IEP was appropriate is reversed; as is
the Hearing Officer’s denial of Parents’ request for tuition reimbursement. The District’s
failure to timely offer an appropriate IEP, and thus FAPE, gives rise to Parents’ tuition
reimbursement claim.

In determining whether an award of tuition reimbursement is valid, the threshold

question has always been whether the student was offered or provided with an


On August 18, 2005, ODR received the District’s Answer via a facsimile. The
one-page document merely incorporated, as District’s Answer, its closing brief, which
was filed prior to the Hearing Officer rendering her decision. In its closing brief, the
District countered Parents’ tuition reimbursement demand, urging the Hearing Officer to
deny Parents’ request.

After a careful and comprehensive de novo review of the Record, we find that the

Hearing Officer erred in her application of the law, and must grant the Parents’ request to

reverse.

DISCUSSION

Scope of Review

Critical here is an understanding of the Appeals Panels’ scope of review, as

enunciated in Carlisle Area School District v. Scott P., 62 F.2d 520 (3d Cir. 1995), where

the Third Circuit said:

"We thus hold that appeals panels reviewing the fact findings of
hearing officers ... should defer to the hearing officer's findings
based upon credibility judgments unless the non-testimonial,
extrinsic evidence in the record would justify a contrary conclusion
or unless the record read in its entirety would compel a contrary
conclusion." 62 F.3d at 529.

In In Re The Educational Placement of R.S., Special Education Opinion #950 (1999), we

analyzed this controlling precedent and held that:

"Of critical import is the Hearing Officer's use of pervasive,
predominant, or overall, denoting general _record support for his
conclusions without denying the existence of such facts inapposite
as__parents cite. In those modifiers obvious credibility
determinations exist which, since_a_ whole record review or non-
testimonial extrinsic_evidence_in_it_does not compel contrary
conclusions, we can not reverse. Similarly, the remaining parental



3. If the District did not offer FAPE, and the placement chosen by the
Parents is appropriate, does a balancing of the equities remove any
or all of the District’s obligation to provide tuition reimbursement?”
HO Dec. @ 2-3.

The Hearing Officer found the District’s proffered 2004-2005 IEP appropriate and

denied Parents’ request for tuition reimbursement.

ISSUES PRESENTED

Parents, continuing pro sé, filed Exceptions via an eleven page document, dated
August 5, 2005, and marked as received by ODR, on August 8, 2005. On August 12,
2005, ODR forwarded this Record, via UPS Ground, to this Panel; whose members
received it on August 15, 2005. Parents excepted to most elements of the Hearing
Officer’s Decision and Order.

The District requested an “extension” on August 18". This Panel’s chairperson
received the request on August 19" and faxed a response denying the request since, it
was believed, the District hadn’t received the Decision (rather than Parents’ Exceptions)
until August 16", thus rendering any extension unnecessary. On Tuesday, August 23"4,
this Panel’s chairperson received clarification that the District was requesting an
extension to file its Answer to the Parents’ Exceptions, rather than an extension to file
District’s own Exceptions. The chairperson contacted ODR’s case manager who
informed him that an additional 14-page document had been received from the District,
which was then faxed to the chairperson upon request. The chairperson immediately
responded to the District, denying its request for an extension to file its Answer as

unnecessary, because the 10-day response time, from August 16", had not yet lapsed.


and completed an evaluation of the Student. FF15-33; SDS. The psychologist’s April
23, 2004 Educational Evaluation Report (ER) included: Student observations; academic,
intellectual, behavioral, and social evaluations; parental input; and APS teacher
interviews, input, checklists, and measures. The ER was supplemented with a
speech/language evaluation (May 5, 2004) and an occupational therapy evaluation.
FF15-40; SD4-6.

The Individualized Educational Program (IEP) team meeting was convened on

May 7, 2004. FF45-85. The Parents rejected the 2004-2005 IEP because, although an
“TEP document” was technically presented to the Parents within the Agreement’s
specified timeline, the IEP program was inappropriate. This, the parents surmised, was
tantamount to no JEP offering at all. Parents continued Student’s enrollment at the APS,
a placement which parties and Hearing Officer agreed is “more than” appropriate. See
footnote #4, infra. Parents, at the Due Process Hearing, requested tuition reimbursement
and fees for the 2004-2005 school year, from the District, for failing to fulfill the ;
Agreement. The District maintained that the 2004-2005 IEP proffered on May 7, 2004
was appropriate at the time of the offering, and that the Parents’ reimbursement request
should be denied.

The four-session due process hearing, at which Parents appeared pro sé,
commenced on February 15, 2005, and ended June 15, 2005. The Hearing Officer, in her
twenty-page Decision, dated July 22, 2005, identified the three following issues:

“1. Did the School District of Philadelphia offer [Student] a free

appropriate public education (FAPE) for the 2004-2005 school year
as articulated in the IEP and NOREP of May 7, 2004?

2. If the District did not offer [Student] FAPE, is [sic] the placement
chosen by the Parents appropriate?


graduation life neither meets, nor terminates, the District’s legal obligation to provide an
appropriate transition plan and thus, IEP and, consequently, FAPE. See specifically P2 @
4, 5,9. Because of Student’s chronological age (17) and, Student’s near completion of
District-provided public school education, the transition plan is a particularly critical
“element”, and must be integrated thoroughly throughout this Student’s entire IEP.
Perhaps most disturbing is that the District’s occupational therapist, who the District

__continuously emphasizes as the leader in identifying, coordinating, providing, and
supporting student’s “transitional programming”, is designated in the IEP to meet with
the Student only minimal times throughout the entire school year. See P2 @ 9. This
inappropriate transition plan renders the entire IEP inappropriate.

Finally, we find that, because the District failed to offer the Student FAPE, the
Parents are entitled to seek tuition reimbursement and fees for Student’s 2004-2005 APS
placement. The parties’ Settlement Agreement provided, “that if the District failed to
offer an IEP on or before May 15, 2004 pendency would remain the tuition and
mandatory fees at [APS] ‘ thereafter.” SD Resp. @ 5; see also SD1. Clearly the 2004-
2005 IEP, offered by the District, by law, would have to be deemed an “appropriate JEP”
pursuant to IDEA for this Settlement Agreement to be valid. We find that the District
offered an inappropriate IEP and, as such, failed to offer Student an IEP within the
timeline terms of the Agreement, and tuition reimbursement is the remedy provided.

Accordingly, we enter the following:

3 See DISCUSSION @ 9, supra.

‘ There is no disagreement among the parties, nor the Hearing Officer, that the APS is “appropriate”. The
Hearing Officer and District both refer to the APS placement as a “Cadillac” program and placement for
this Student. See SD Resp. @ 4; HO Dec. @ 16; see also FF86-89.

13